PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS - VEXATIOUS LITIGANT
Application by Attorney-General for a declaration and orders under s 39 of the Supreme Court Act 1935 (SA) and/or the inherent jurisdiction of the Court – respondents have over 20 years persistently instituted proceedings against the State of South Australia, Ministers, government employees, and the Court seeking to establish liability for alleged wrongs done to the first respondent in his former employment – whether proceedings have been instituted in a prescribed court – whether proceedings have been instituted without reasonable ground and/or for an ulterior purpose – whether proceedings have been instituted persistently – whether the Court’s discretion to exercise the power under s 39 of the Supreme Court Act 1935 (SA) has been enlivened.
HELD:The application is granted, and the following declarations and orders are made:
1.The discretion to make orders under s 39 of the Supreme Court Act 1935 (SA) has been enlivened.
2.Each of the respondents has persistently instituted vexatious proceedings.
3.Pursuant to s 39(1) of the Supreme Court Act 1935 (SA), each of the respondents is prohibited from instituting further proceedings in a prescribed court without the permission of the Supreme Court.
4.Proceedings already instituted by each or both of the respondents are permanently stayed.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Attorney-General (SA) v McDonald [2024] SASC 67
Case
[2024] SASC 67
Decision Date
CaseChat Overview and Summary
In the case of Attorney-General (SA) v McDonald, the Attorney-General sought a declaration that Mr and Mrs McDonald were vexatious litigants under the Supreme Court Act 1935 (SA). The case involved the McDonalds' complaints about their treatment as teachers and their subsequent claims for workers' compensation. The matter was first heard by Judge Withers, who dismissed the McDonalds' application for judicial review, finding no reasonable basis for their complaints. The McDonalds appealed this decision to Nicholson J, who also dismissed the appeal. The Attorney-General then applied to the Supreme Court for a declaration that the McDonalds were vexatious litigants, and that they be prohibited from instituting further proceedings without permission.
The primary legal issue before the court was whether the McDonalds' proceedings met the threshold for being considered vexatious under s 39(5)(b) of the Supreme Court Act 1935 (SA). The court had to consider whether the McDonalds had persistently instituted proceedings that had no reasonable basis or were otherwise frivolous or without merit. The court considered the McDonalds' previous applications for judicial review and the appeal against the decision of Hannon DP, as well as the underlying claims for workers' compensation and their related complaints.
The court found that the McDonalds had persistently instituted proceedings that had no reasonable basis. It noted that both Judge Withers and Nicholson J had found that the McDonalds' applications for judicial review had no prospects of success. The court also noted that the McDonalds' underlying claims for workers' compensation were not relevant to the issue of whether they were vexatious litigants. The court held that the McDonalds had instituted proceedings that were vexatious within the meaning of the Act, and that the discretion prescribed by the Act should be exercised to make orders prohibiting them from instituting further proceedings without permission.
The court made a declaration that each of Mr and Mrs McDonald was a vexatious litigant and made orders pursuant to s 39(1)(a) and (b) of the Supreme Court Act 1935 (SA). The orders prohibit the McDonalds from instituting further proceedings in a prescribed court without permission of the Supreme Court, and stay any proceedings already instituted by them. The orders do not prohibit the filing of a notice of appeal against the declaration and orders.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
BAMPTON J
On 4 December 2012, in refusing permission to proceed with the judicial review, Judge Withers said:[63]In all of the circumstances, in my view no material has been filed in this matter which demonstrates a reasonable basis on which the applicant might establish a right to an order for judicial review. The breadth of [Mr McDonald’s] submissions make it abundantly clear that his real concern is a passionate perception on his part that he and his family have been the victims of a conspiracy involving this Court and other institutions to prevent him and his family from obtaining just compensation for the consequences of the way in which he was treated as a teacher some years ago. An application for judicial review of a decision … which decision appears in the end to have been with the concurrence or at the request of [Mr McDonald], is not a process that provides a foundation for the airing of those complaints.3: Appeal to single Judge of the Supreme Court from Judge Withers’ decision[64][63] McDonald v The Workers Compensation Tribunal (SASC, Judge Withers, 4 December 2012) at [30].[64] SCCIV‑12‑1460. On 19 March 2013, in dismissing Mr McDonald’s appeal from Judge Withers’ decision, Nicholson J held that Judge Withers’ decision was correct and stated:[65]… I have conducted my own examination of the reasons of Hannon DP in the context of Mr McDonald’s overarching complaints. The decision whether or not to strike out for want of prosecution is essentially a discretionary one. Mr McDonald has been given every reasonable opportunity to have his claim heard in the Tribunal. I can discern no reasonable basis for an argument that Hannon DP erred in the exercise of the discretion open to him. No potential failure to have observed the requirements of House v R has been identified. In my view, Mr McDonald’s application for judicial review, were it to proceed, would have no prospects of success. He has not shown a reasonable basis on which he might establish a right to an order for judicial review.[65] McDonald v Workers Compensation Tribunal [2013] SASC 34 at [28] (Nicholson J). The Attorney-General submits that these express findings as to there being no reasonable basis for a judicial review application demonstrate that both the initial application for permission to seek judicial review and the appeal heard by Nicholson J were “vexatious” within the meaning of s 39(5)(b) of the Act. Mr and Mrs McDonald argue these three proceedings are not vexatious, contending the appeal from Hannon DPJ’s decision came about because the Crown Solicitor had informed Mr McDonald in a letter dated 16 February 2011 that if he wished to proceed with a Workcover claim he would need to make a claim against the State of South Australia in the right of “DECS”.[66] I note that letter concludes reiterating: “As discussed before the Tribunal the identity of your employer is not an issue to be decided for the purposes of your claim or the dispute before the Tribunal”.[67][66] CIV-21-010182, FDN 75 at [282].[67] Exhibit R5 at p 10.
Ratio Decidendi
Legal Principle Established
Established by:
BAMPTON J
I am satisfied the discretion prescribed by the Act should be exercised to make orders pursuant to s 39(1)(a) and (b).Declaration I declare that each of Mr and Mrs McDonald has persistently instituted vexatious proceedings.Orders1.Pursuant to s 39(1) of the Supreme Court Act 1935 (SA), I order:(a) that each of Mr and Mrs McDonald is prohibited from instituting further proceedings in a prescribed court without permission of the Supreme Court, and(b) that proceedings already instituted by each or both of them are permanently stayed. 2.These orders do not prohibit the filing of a notice of appeal against the declaration and orders. Annexure 1Annexure 2